[Cite as State v. Nugent, 2014-Ohio-3848.]
COURT OF APPEALS
GUERNSEY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellee Hon. Sheila G. Farmer, J.
Hon. John W. Wise, J.
-vs-
Case No. 13 CA 30
THOMAS NUGENT
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Guernsey County Court of
Common Pleas, Case No. 13CR62
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: September 3, 2014
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
DANIEL G. PADDEN LINDSEY K. DONEHUE
Prosecuting Attorney 120 Southgate Parkway
139 West 8th Street P.O. Box 464
P.O. Box 640 Cambridge, Ohio 43725
Cambridge, Ohio 43725
Guernsey County, Case No. 13 CA 30 2
Hoffman, P.J.
{¶1} Defendant-appellant Thomas Nugent appeals his sentence entered by the
Guernsey County Court of Common Pleas. Plaintiff-appellee is the state of Ohio.
STATEMENT OF THE CASE1
{¶2} Following a trial to the bench in the Guernsey County Court of Common
Pleas, Appellant was convicted of one count of vehicular homicide, a misdemeanor of
the first degree, in violation of R.C 2903.06(A)(2).; one count of tampering with
evidence, a felony of the third degree, in violation of R.C. 2921.12; failure to stop after
an accident, a felony of the third degree, in violation of R.C. 4549.02; and an assured
clear distance/speed limit, a minor misdemeanor, in violation of R.C. 4511.21(A).
{¶3} At the September 4, 2013 sentencing hearing, the trial court sentenced
Appellant to six months in the Guernsey County Jail on the vehicular homicide count;
three years imprisonment for the vehicular homicide count; three years imprisonment for
the tampering with evidence count; three years imprisonment for the failure to stop at an
accident count, and a fine of $150.00 for the traffic violation. The three year terms of
imprisonment were ordered to be served consecutively, but concurrent with the six
month jail sentence for a total term of imprisonment of 72 months. Appellant was
further ordered to pay costs and restitution.
{¶4} Appellant appeals, assigning as error:
{¶5} "I. THE TRIAL COURT COMMITTED ERROR WHEN IT ABUSED ITS
DISCRETION AND SENTENCED APPELLANT TO THE MAXIMUM TERM
PERMITTED BY LAW.
1
A rendition of the underlying facts is unnecessary for the resolution of this appeal.
Guernsey County, Case No. 13 CA 30 3
{¶6} "II. THE TRIAL COURT COMMITTED ERROR WHEN IT ABUSED ITS
DISCRETION AND ORDERED CONSECUTIVE SENTENCES ABSENT A FINDING
THAT CONSECUTIVE SENTENCES WERE NOT DISPROPORTIONATE TO THE
SERIOUSNESS OF APPELLANT'S CONDUCT."
I
{¶7} In the first assigned error, Appellant maintains the trial court erred in
sentencing him to the maximum term provided by law.
{¶8} In State v. Kalish, 120 Ohio St.3d 23, 2008–Ohio–4912, 896 N.E.2d 124,
the Ohio Supreme Court reviewed its decision in State v. Foster, 109 Ohio St.3d 1,
2006–Ohio–856, 845 N.E.2d 470, as it relates to appellate review of felony sentencing.
The Court stated, “an appellate court remains precluded from using an abuse-of-
discretion standard of review when initially reviewing a defendant's sentence” and must
instead “ensure that the trial court has adhered to all applicable rules and statutes in
imposing the sentence. As a purely legal question, this is subject to review only to
determine whether it is clearly and convincingly contrary to law, the standard found in
R.C. 2953.08(G).” Id.
{¶9} When reviewing a felony sentence, an appellate court must first review the
sentence to ensure the sentencing court clearly and convincingly complied with the
applicable laws. Id. A trial court's sentence would be contrary to law if, for example, it
were outside the statutory range, in contravention to a statute, or decided pursuant to
an unconstitutional statute. Id. In Kalish, the Supreme Court held the trial court's
decision was not contrary to law when the trial court expressly stated it considered the
purposes and principles of R.C. 2929.11, the factors listed in R.C. 2929.12, properly
Guernsey County, Case No. 13 CA 30 4
applied post-release control, and the sentence was within the permissible range. Kalish
at ¶ 18.
{¶10} If this inquiry is satisfied, an appellate court then reviews the trial court's
sentencing decision for abuse of discretion. Id. In order to find an abuse of discretion,
we must determine the trial court's decision was unreasonable, arbitrary, or
unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore, 5
Ohio St.3d 217, 450 N.E.2d 1140 (1983).
{¶11} Here, Appellant's sentence is within the statutory range for felonies of the
third degree. We find the trial court did not abuse its discretion in sentencing Appellant
to the maximum prison term based upon his criminal history and the facts demonstrated
in the record as set forth in the transcript of the sentencing hearing.
{¶12} The first assignment of error is overruled.
II.
{¶13} In the second assignment of error, Appellant asserts the trial court erred in
sentencing him to consecutive sentences.
{¶14} The Ohio Supreme Court recently addressed the requirements for a trial
court to impose consecutive sentences in State v. Bonnell, 2014 Ohio 3177, holding,
{¶15} "When imposing consecutive sentences, a trial court must state the
required findings as part of the sentencing hearing, and by doing so it affords notice to
the offender and to defense counsel. See Crim.R. 32(A)(4). And because a court
speaks through its journal, State v. Brooke, 113 Ohio St.3d 199, 2007-Ohio-1533, 863
N.E.2d 1024, ¶ 47, the court should also incorporate its statutory findings into the
sentencing entry. However, a word-for-word recitation of the language of the statute is
Guernsey County, Case No. 13 CA 30 5
not required, and as long as the reviewing court can discern that the trial court engaged
in the correct analysis and can determine that the record contains evidence to support
the findings, consecutive sentences should be upheld.
{¶16} "****
{¶17} "In order to impose consecutive terms of imprisonment, a trial court is
required to make the findings mandated by R.C. 2929.14(C)(4) at the sentencing
hearing and incorporate its findings into its sentencing entry, but it has no obligation to
state reasons to support its findings. Nor is it required to give a talismanic incantation of
the words of the statute, provided that the necessary findings can be found in the record
and are incorporated in the sentencing entry." Bonnell, supra at ¶29-37.
{¶18} The Court stated in Bonnell,
{¶19} "In this case, the trial court had obviously reviewed the presentence-
investigation report and knew of Bonnell's criminal record, because it described his
record as atrocious and stated that he had shown very little respect for society. But the
court did not completely adhere to R.C. 2929.14(C)(4).
{¶20} "We can discern from the trial court's statement that Bonnell had 'shown
very little respect for society and the rules of society' that it found a need to protect the
public from future crime or to punish Bonnell. We also can conclude that the court found
that Bonnell's 'atrocious' record related to a history of criminal conduct that
demonstrated the need for consecutive sentences to protect the public from future
crime. But it never addressed the proportionality of consecutive sentences to the
seriousness of Bonnell's conduct and the danger he posed to the public, which in this
Guernsey County, Case No. 13 CA 30 6
case involved an aggregate sentence of 8 years and 5 months in prison for taking $117
in change from vending machines." Bonnell at ¶32-33.
{¶21} In the case sub judice, the record of the September 4, 2013 Sentencing
Hearing indicates the trial court stated,
{¶22} "The Court turns now to the duty of pronouncing the sentence of
incarceration. Here, the Court finds for Count 1, aggravated vehicular homicide, which
is a misdemeanor of the first degree, 180 days in jail. The Court finds for Count 3,
tampering with evidence, a felony of the third degree, on the facts of this case that a
sentence of 36 months of imprisonment is appropriate.
{¶23} "The Court finds as to the failing to stop after an accident, the sentence
should be 36 months of imprisonment, the Court finds that under Ohio law, these
sentences should be served consecutively, as the Court finds the harm is so great or
unusual, a death, that a single term does not adequately reflect the seriousness of the
conduct. And the criminal history of Thomas Nugent shows that consecutive terms are
needed to protect the public. If released on the facts of this case, the public would face
the very real possibility he simply would drink and drive again to cause harm, damage to
others. It is the duty of the Court to punish the offender and protect the public from
future crime.
{¶24} "The Court finds that I'm not unmindful of the argument made by the
attorney for the defendant that a consecutive sentence of 72 months must be compared
with other sentences. The other crimes to which the other individuals the attorney for
the defendant referred to, they were not the ultimate actor. Here, Mr. Nugent is the
ultimate actor. The Court further finds that no sentence, no matter how long or how
Guernsey County, Case No. 13 CA 30 7
severe, can return the life, the young man whose life has been taken, the other young
man who has received serious physical harm. It's the Court's duty, however, to protect
the public from future crime. The court finds against the 72 month sentence that is
imposed, and the sentence as to assured clear distance is $150 fine."
{¶25} Tr. at 69-70.
{¶26} We find the trial court's statement is sufficient under Bonnell, supra, to
support its imposition of conviction sentences.
{¶27} The second assignment of error is overruled.
{¶28} Appellant's sentence in the Guernsey County Court of Common Pleas is
affirmed.
By: Hoffman, P.J.
Farmer, J. and
Wise, J. concur
State v. Nugent
Combined Opinion